The purpose of the present paper is to offer a Foucauldian critique of Habermas’s theory of law a... more The purpose of the present paper is to offer a Foucauldian critique of Habermas’s theory of law and democracy. Quite famously Habermas viciously attacked Foucault’s positions on law and power in modernity. Those attacks will be taken into consideration here in order to show some deficiencies in Habermas’s own reading of modern law and democracy. My suggestion is that the formal nature of Habermas’s communicative approach fails to take into adequate consideration the question of subjectivity formation. More precisely I will demonstrate that Haber- mas’s own works show a troublesome ambivalence with regards to the possibility that individuals can participate as ‘unencumbered selves’ to the public life of their community. As a consequence his account turns a blind eye to certain dynamics of power in our society that a Foucauldian approach seems more apt to frame and explore.
The figure of the Other stands prominently at the centre of debates concerning EU social and poli... more The figure of the Other stands prominently at the centre of debates concerning EU social and political identity. In particular, the 'Other' has become a 'master noun' in the field of EU citizenship and migration law. Notwithstanding the centrality of such a notion, the figure of the Other appears as underdeveloped. Who is, theoretically speaking, the Other? And, what does the proposition tell us about the way in which Europe understands itself? This paper explores these questions by analysing the legal framework of EU citizenship and immigration law as symptomatic of a profound malaise affecting Europe. Increasingly adopting a strategy based on the principle of 'revolving doors' to deal with outsiders, Europe treats the Other as a 'Xenos', an alien form of life that is included and yet distrusted, welcomed and yet under the pending threat of expulsion. This conception of the Other as Xenos reflects a solipsistic, static, and auto-referential idea of Europe, one that ultimately prevents the formation of a pluralistic and multifaceted European identity, and endangers the European ethical and political project as a whole.
Although Foucault can be rightly seen as one of the most influential thinkers of our times, his i... more Although Foucault can be rightly seen as one of the most influential thinkers of our times, his ideas have hardly been straightforwardly accepted. His vision of law in the modern era, in particular, has drawn some severe criticism. Scholar as diverse as Habermas and Poulantzas have expressed strong doubts with regards to Foucault's approach to law, accusing him of downplaying the role of the legal phenomenon in modern society to an unacceptable extent and with a distorting result. Such attacks are far from unwarranted. Foucault's argument appears almost counterfactual: How is it possible to claim that in the modern "age of rights" the individual, formally protected by a sphere of legal autonomy, is, in fact, subject to the continuous gaze of biopolitical forms of power? The present article is a contribution to the debate concerning this question. Focusing on the concept of the Rule of Law I will try to demonstrate that the basic tenets of the modern legal system are not incompatible with Foucault's reconstructions of the dynamics of modern power. My claim is that the problematic relationship between biopolitics and law within Foucault's theory is to be understood as the problem of the contemporary gendering of freedom. Building on Foucault's suggestion that freedom and power should be seen as an almost co-extensive couplet (and not as oppositional poles) I suggest that modern law does indeed foster individual liberty but it does so in a way that also allows a deeper penetration of power within the social body. In this perspective, I argue that the Rule of Law, shifting the legal paradigm from that of Hobbesian commands to that of the norm, proved instrumental for the flourishing of normalising dynamics that rely on the freedom of the individual for their establishment and propagation. Law, analysed through a biopolitical prism, appears as a normalising apparatus both in the sense that it translates the person into the discrete entity of the legal subject and in the sense that it provides the structuring rules framing the general landscape and environment of social life.
The Role of Science in Law by Robin Feldman deals with an important and very contemporary topic. ... more The Role of Science in Law by Robin Feldman deals with an important and very contemporary topic. It addresses the problematic relationship between law and science, and more specifically the dynamics arising when law uses science to solve its own dilemmas or tries to regulate ...
The purpose of the present paper is to offer a Foucauldian critique of Habermas’s theory of law a... more The purpose of the present paper is to offer a Foucauldian critique of Habermas’s theory of law and democracy. Quite famously Habermas viciously attacked Foucault’s positions on law and power in modernity. Those attacks will be taken into consideration here in order to show some deficiencies in Habermas’s own reading of modern law and democracy. My suggestion is that the formal nature of Habermas’s communicative approach fails to take into adequate consideration the question of subjectivity formation. More precisely I will demonstrate that Haber- mas’s own works show a troublesome ambivalence with regards to the possibility that individuals can participate as ‘unencumbered selves’ to the public life of their community. As a consequence his account turns a blind eye to certain dynamics of power in our society that a Foucauldian approach seems more apt to frame and explore.
The figure of the Other stands prominently at the centre of debates concerning EU social and poli... more The figure of the Other stands prominently at the centre of debates concerning EU social and political identity. In particular, the 'Other' has become a 'master noun' in the field of EU citizenship and migration law. Notwithstanding the centrality of such a notion, the figure of the Other appears as underdeveloped. Who is, theoretically speaking, the Other? And, what does the proposition tell us about the way in which Europe understands itself? This paper explores these questions by analysing the legal framework of EU citizenship and immigration law as symptomatic of a profound malaise affecting Europe. Increasingly adopting a strategy based on the principle of 'revolving doors' to deal with outsiders, Europe treats the Other as a 'Xenos', an alien form of life that is included and yet distrusted, welcomed and yet under the pending threat of expulsion. This conception of the Other as Xenos reflects a solipsistic, static, and auto-referential idea of Europe, one that ultimately prevents the formation of a pluralistic and multifaceted European identity, and endangers the European ethical and political project as a whole.
Although Foucault can be rightly seen as one of the most influential thinkers of our times, his i... more Although Foucault can be rightly seen as one of the most influential thinkers of our times, his ideas have hardly been straightforwardly accepted. His vision of law in the modern era, in particular, has drawn some severe criticism. Scholar as diverse as Habermas and Poulantzas have expressed strong doubts with regards to Foucault's approach to law, accusing him of downplaying the role of the legal phenomenon in modern society to an unacceptable extent and with a distorting result. Such attacks are far from unwarranted. Foucault's argument appears almost counterfactual: How is it possible to claim that in the modern "age of rights" the individual, formally protected by a sphere of legal autonomy, is, in fact, subject to the continuous gaze of biopolitical forms of power? The present article is a contribution to the debate concerning this question. Focusing on the concept of the Rule of Law I will try to demonstrate that the basic tenets of the modern legal system are not incompatible with Foucault's reconstructions of the dynamics of modern power. My claim is that the problematic relationship between biopolitics and law within Foucault's theory is to be understood as the problem of the contemporary gendering of freedom. Building on Foucault's suggestion that freedom and power should be seen as an almost co-extensive couplet (and not as oppositional poles) I suggest that modern law does indeed foster individual liberty but it does so in a way that also allows a deeper penetration of power within the social body. In this perspective, I argue that the Rule of Law, shifting the legal paradigm from that of Hobbesian commands to that of the norm, proved instrumental for the flourishing of normalising dynamics that rely on the freedom of the individual for their establishment and propagation. Law, analysed through a biopolitical prism, appears as a normalising apparatus both in the sense that it translates the person into the discrete entity of the legal subject and in the sense that it provides the structuring rules framing the general landscape and environment of social life.
The Role of Science in Law by Robin Feldman deals with an important and very contemporary topic. ... more The Role of Science in Law by Robin Feldman deals with an important and very contemporary topic. It addresses the problematic relationship between law and science, and more specifically the dynamics arising when law uses science to solve its own dilemmas or tries to regulate ...
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Papers by Jacopo Martire